This is an appeal by the defendant from judgments of conviction in the Municipal Court of the City of Bayonne. The trial proceedings were taken stenographically, and therefore the appeal is heard de novo on the record so made. R.R. 3:10-10(a).
The original complaints in the municipal court charge this defendant with violating sections 4 and 20 of an ordinance of the Hudson County Park Commission (Commission). The complaints were amended to delete reference to the Disorderly Persons Act.
Under R.R. 3:10-10, an appeal to the County Court from a conviction by a municipal court results in a trial de novo before the County Court. The trial de
novo nullifies the proceedings before the municipal court, except the initiating proceedings of complaint and warrant. State v. Joas , 34 N.J. 179, 189 (1961). The appeal acts as a waiver of all defects in the record. State v. Menke , 25 N.J. 66 (1957); R.R. 3:10-10(a).
The pertinent sections of the ordinance adopted by the Commission on December 7, 1953 are as follows:
"Section 4. No person within the parks shall preach or make any harangue, sing, play a musical instrument, or move in a military or civic parade, drill or procession, or hold any meeting or exhibit to the public any performance of any kind without written permission of the Hudson County Park Commission."
"Section 20. A permit to do any act shall authorize the same only in so far as it may be performed in strict accordance with the terms and conditions thereof. Any violation by its holder or his agents or employees of any term or condition thereof, shall constitute grounds for its revocation by the Commission or its authorized representative. In case of a breach of any permit, all moneys paid for on account thereof shall be forfeited to and retained by the Commission."
"Section 30. Any person convicted of violating any provisions of this Ordinance after trial before a magistrate of the local municipality in which said park is located, shall be liable to a fine not exceeding Fifty ($50.00) Dollars and costs for each offense. The fine collected shall be paid over by the said magistrate to the Hudson County Park Commission and the costs shall be retained and paid into the treasury of said local municipality."
Defendant was charged, by two separate complaints, with the commission of two separate offenses under the ordinance. The first complaint charges him with violation of the ordinance on July 24, 1960, in that he used a loudspeaker at a public religious meeting in a county park, contrary to the terms of a written permit issued by the Commission which prohibited the use of sound equipment. The meeting was held with permission of the Commission pursuant to sections 4 and 20 of the ordinance. The second complaint charged defendant with the offense of holding a meeting in the same county park on July 31, 1960, after the Commission revoked the original permit because of the use of the sound equipment at the meeting held in the park
on July 24, 1960, "in violation of the terms on which the permit was issued and in accordance with the provisions of Section 20 of the Ordinance."
Defendant is a member of Jehovah's Witnesses. It is admitted that application was made by the Bayonne Congregation of Jehovah's Witnesses to the Commission for permission to hold religious meetings in the county park. The Commission authorized meetings for July 3, 10, 24 and 31, 1960. The letter of authorization specifically provided that "sound equipment is prohibited by the Rules and Regulations of the Hudson County Park Commission." In response to an inquiry relative to the Commission's refusal to permit the use of sound equipment, the applicant was referred to sections 4 and 20 of the ordinance. The Commission insisted that the use of the park under the permit be "in strict accordance with the terms and conditions" of the permit. The meeting was held on July 24, 1960 and it is uncontradicted that the defendant was arrested "purely because he was using a sound device"; he was not disturbing other people using the park. On July 28, 1960 the Commission revoked its previous authorization to use the park on July 31, 1960 because of use of sound equipment at the previous meeting. The magistrate held that the defendant should have resorted to the courts for relief by way of injunction or mandamus to compel the Commission to permit the use of sound equipment, and having failed to do so, cannot complain about the actions of the Commission. Defendant was found guilty on both charges.
Defendant challenges the validity of the ordinance upon which the convictions were based, alleging the unconstitutionality of the ordinance in that its provisions grant unlimited discretion to the issuing authority, and therefore violates the rights of freedom of speech, assembly and worship, contrary to the provisions of the First and Fourteenth Amendments to the United States Constitution.
It has long been the practice for a person charged with violation of an ordinance to object, in a penal action
thereon, to the validity of the ordinance, and in that mode place before the court the limited question whether the ordinance is not a nullity in that particular instance. It is not necessary to first attack the claimed unlawful act in a mandamus proceeding to compel the issuance of a license. Lipkin v. Duffy , 119 N.J.L. 366 (E. & A. 1937).
The Commission is governed by the provisions of Revised Statutes of New Jersey, Title 40, chapter 37, sections 96 to 174. The statute provides, inter alia , as follows:
"Sec. 101 -- The commission may acquire, maintain and make available to the inhabitants of the county wherein it is appointed, and to the public, parks and open spaces for public resort and recreation * * * and for these purposes may take in fee or otherwise * * * lands or any right or interest therein for public parks and open spaces within the county. Deeds of conveyance therefor shall be made to the commission by its corporate name, and it shall preserve, care for, and lay out and improve any such parks and places, and make rules for the use and government of the same. * * *"
"Sec. 147 -- It shall be lawful to be present at and take part in, in county parks * * * on any day in the week, * * * sports, plays, games, recreations, concerts and amusements, to the extent and in such manner as the county park commission having control of the parks, shall designate; and such commission may make all necessary rules and regulations controlling and governing said sports, plays, games, recreations, concerts and amusements, and prohibiting them in such parks or parts of parks in which said board of park commissioners may deem it unwise to permit the same * * *."
"Sec. 152 -- The commission may:
(a) Make, alter, amend and repeal rules and regulations for the protection, regulation and control of the parks * * *."
Pursuant to the said statutory authority, the Commission adopted the ordinance for the protection, care, government and use of the parks under its control. The ordinance is penal in character. It is rudimentary that in a summary proceeding on a penal ordinance nothing is presumed or intended in favor of the complaint and conviction thereon. The Commission was necessarily obliged to sustain its power to pass the "rules and regulations" (ordinance) allegedly
violated, and to prove the charges made. Studerus Oil Co., Inc. v. Jersey City , 128 N.J.L. ...